VALLEJO — Did it or didn’t it start the fire that severely burned its owner?

That question ultimately may be answered in court after a lawyer for a Vallejo man said Thursday that he may sue the manufacturer of a cell phone initially blamed for setting his client on fire.

Although the critically injured Luis Picaso, 59, has not yet spoken since the incident late Saturday night, attorney Vance Owen told MediaNews that Picaso’s cell phone is the only logical culprit because Picaso doesn’t smoke.

Owen’s comments came a day after the Vallejo Fire Department backed off on its earlier claims that Picaso’s Nokia-model phone had somehow malfunctioned and caused the fire.

Picaso has had at least one skin graft to help repair burns to his torso, face and legs, Owen said. The man is in critical but stable condition in the burn unit at Sacramento’s University of California, Davis, Medical Center, hospital spokeswoman Carole Gan said Thursday.

Vallejo Fire Department investigator Bill Tweedy originally concluded the blaze that burned Picaso while he slept was sparked by the Nokia Cellular Phone Model 2125i that was in his pocket. But after Nokia engineers tested the phone, they found it still functional — which they and Tweedy said means the phone couldn’t have caused the fire.

“A cell phone can’t create a spark,” Nokia’s Keith Nowak said Thursday. “The most likely way a spark can happen is from a short in a battery, and if that happened, the phone wouldn’t work anymore.”

It’s the same conclusion arrived at by Sharon Hilliard of Wireless Consumer Alliance on Thursday. The Alliance is a nonprofit organization that has tallied several incidents involving people injured by cell phones.

“Nothing is impossible, but if a fire was bad enough to severely burn a man, it would have destroyed the delicate circuitry in the phone,” Hilliard said. “That the phone still works is really what I can’t understand. Are we sure no one switched phones or batteries? It defies logic.”

Cell phone safety experts noted that only about 100 cell phones caught fire between 2002 to 2004, based on one government report, though more than 200 million cell phones are in use. When they do catch fire, the culprit is nearly always a replacement battery, experts say.

Tweedy said he was present during the Nokia engineers’ testing and that they did what — and only what — he asked them to do.

But Owen, of the Los Angeles area law firm of Kiesel, Boucher & Larson, said having Nokia determine if their product caused the blaze was “like asking an arsonist if he started the fire.”

Since Picaso is not a smoker and didn’t have matches or lighters in the pocket in which the fire was determined to have started, the only logical source of ignition was the cell phone, Owen said.

“We don’t feel comfortable asking the possibly culpable party if they’re responsible or not,” Owen said. “We had experts ready, willing and able to test the phone. We weren’t there to ensure there was no destructive testing done.”

Paul MacNamara of Network World, a technology publication, also said the decision to have only Nokia engineers inspect the device may have been a mistake.

“Tweedy couldn’t have been more adamant about the cell phone starting the fire at first,” MacNamara said. “And he handed the evidence over to the phone manufacturer. Imagine if a police department did that.”

The Nokia experts were used because they offered to test the device for free and Vallejo “doesn’t have the money for electronic engineers,” Tweedy said.

The Vallejo Police Department has the phone in “safekeeping,” until Picaso can recover it.

Though ruling out nothing, Owen said Picaso’s lawyers and family members have not discussed suing the city of Vallejo or its fire department.

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